EMPLOYMENT AGREEMENT
AGREEMENT, dated as of May 1, 2001, between GP Strategies
Corporation, a Delaware corporation with principal executive offices at 0 Xxxx
00xx Xxxxxx, Xxxxx 0000, Xxx Xxxx, Xxx Xxxx 00000 (the "Company"), and Xxxxxx
Xxxx Xxxxxx, residing at, New York, New York x ("Employee").
W I T N E S S E T H
WHEREAS, the Company desires to employ Employee upon the terms and
subject to the terms and conditions set forth in this Agreement.
NOW, THEREFORE, in consideration of the premises, the mutual promises,
covenants, and conditions herein contained and for other good and valuable
considerations, the receipt and sufficiency of which are hereby acknowledged,
the parties hereto intending to be legally bound hereby agree as follows:
Section 1. Employment.
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The Company hereby agrees to continue to employ Employee, and Employee
hereby agrees to continue to serve the Company, all upon the terms and subject
to the conditions set forth in this Agreement.
Section 2. Capacity and Duties.
Employee is and shall be employed in the capacity of Vice President and
General Counsel of the Company and shall have the duties, responsibilities, and
authorities normally performed by the vice president and general counsel of a
company and such other duties, responsibilities, and authorities as are assigned
to her by the Board of Directors of the Company (the "Board") so long as such
additional duties, responsibilities, and authorities are consistent with
Employee's position and level of authority as Vice President and General Counsel
of the Company. Employee shall devote substantially all of her business time and
attention to promote and advance the business of the Company.
Section 3. Term of Employment.
Unless sooner terminated in accordance with the provisions of this
Agreement, the term of employment of Employee by the Company pursuant to this
Agreement shall be for the period (the "Employment Period") commencing on the
date hereof and ending on June 30, 2004; provided, however, that if this
Agreement has not been terminated in accordance with the provisions hereof prior
to June 30, 2002, the Employment Period shall be extended on June 30, 2002 to
June 30, 2005.
Section 4. Place of Employment.
Employee's principal place of work shall be located at the principal
offices of the Company, currently located in New York, New York. The Company's
principal offices shall not be relocated outside of the New York/New Jersey
Metropolitan Area without Employee's consent.
Section 5. Compensation.
During the Employment Period, subject to all the terms and conditions
of this Agreement and as compensation for all services to be rendered by
Employee under this Agreement, the Company shall pay to or provide Employee with
the following:
(a) Base Salary. Commencing May 1, 2001, the Company shall pay
to Employee a base annual salary at the rate of $190,000. Each May 1 during the
Employment Period, the base annual salary shall be increased, as determined by
the Board, by a minimum of the greater of (i) 3% and (ii) the percentage
increase in the Consumer Price Index (as hereinafter defined) in effect for the
month of March preceding the May 1 in question compared to the Consumer Price
Index in effect for the prior month of March. The "Consumer Price Index" shall
mean the Consumer Price Index for all Urban Consumers published by the Bureau of
Labor Statistics, United States Department of Labor, or the supplement or
successor thereto if publication of such index should be discontinued. The base
salary will be payable at such intervals (at least monthly) as salaries are paid
generally to other executive officers of the Company.
(b) Bonus. Each December during the Employment Period,
commencing in 2001, the Board shall determine Employee's bonus (the "Bonus") for
the year then ending, based upon the Company's revenues, profits or losses,
financing activities, and such other factors deemed relevant by the Board. Any
Bonus shall be payable to Employee on or after January 2 of the following year.
(c) Options. The Company shall grant to Employee under its
option plan, options to purchase shares of the common stock of the Company at an
exercise price equal to the market price on the date of grant. Such options
shall accelerate as provided in Section 11(d)(ii)(C).
(d) Vacation. Employee shall be entitled to vacation in
accordance with the Company's policy for its senior executives. Vacation may be
carried into the subsequent year if not used in the year earned.
(e) Automobile. The Company shall provide Employee with an
automobile of her choice (comparable to the automobile currently provided by the
Company to Employee) at the Company's expense and shall pay the maintenance,
gas, and insurance expenses in connection with such automobile. Such automobile
shall be equipped with a car phone to be paid for by the Company.
(f) Life and Disability Insurance. The Company shall maintain
the existing life and disability insurance policies covering Employee.
(g) Employee Benefit Plans. Employee shall be entitled to
participate in all employee benefit plans maintained by the Company for its
senior executives or employees, including without limitation the Company's
medical and 401(k) plans.
Section 6. Expenses.
The Company shall reimburse Employee for all reasonable expenses
(including, but not limited to, business travel and customer entertainment
expenses) incurred by her in connection with her employment hereunder in
accordance with the written policy and guidelines established by the Company for
executive officers.
Section 7. Non-Competition, Non-Solicitation.
Employee agrees that she will not during the period she is
employed by the Company under this Agreement or otherwise and for a period of
nine months thereafter, directly or indirectly, (a) solicit the employment of,
or encourage to leave the employment of the Company or any of its subsidiaries,
any person who is now employed by the Company or any of its subsidiaries, (b)
hire any employee or former employee of the Company or any of its subsidiaries,
or (c) compete with or be engaged in the same business as the Company or any of
its subsidiaries, or be employed by, or act as consultant or lender to, or be a
director, officer, employee, owner, or partner of, any business or organization
which, during the period Employee is employed by the Company under this
Agreement or otherwise, directly or indirectly competes with or is engaged in
the same business as the Company or any of its subsidiaries, except that in each
case the provisions of this Section 7 will not be deemed breached merely because
Employee owns not more than 1% of the outstanding common stock of a corporation,
if, at the time of its acquisition by Employee, such stock is listed on a
national securities exchange, is reported on NASDAQ, or is regularly traded in
the over-the-counter market by a member of a national securities exchange. If
the Employment Period ends on June 30, 2005, the Company shall pay Employee
during the period after the Employment Period that Employee is subject to this
Section 7, provided that Employee is in full compliance with this Section 7, at
the rate of her base annual salary received from the Company during the last
year of the Employment Period, payable at such intervals (at least monthly) as
salaries are paid generally to executive officers of the Company, which
obligation shall cease after nine months or such earlier time as the Company, in
its sole discretion, releases Employee from the provisions of this Section 7.
Section 8. Patents.
Any interest in patents, patent applications, inventions,
copyrights, developments, and processes ("Such Inventions") which Employee now
or hereafter during the period she is employed by the Company under this
Agreement or otherwise may own or develop relating to the fields in which the
Company or any of its subsidiaries may then be engaged shall belong to the
Company; and forthwith upon request of the Company, Employee shall execute all
such assignments and other documents and take all such other action as the
Company may reasonably request in order to vest in the Company all her right,
title, and interest in and to Such Inventions free and clear of all liens,
charges, and encumbrances.
Section 9. Confidential Information.
All confidential information which Employee may now possess,
may obtain during or after the Employment Period, or may create prior to the end
of the period she is employed by the Company under this Agreement or otherwise
relating to the business of the Company or of any its customers or suppliers
shall not be published, disclosed, or made accessible by her to any other
person, firm, or corporation either during or after the termination of her
employment or used by her except during the Employment Period in the business
and for the benefit of the Company, in each case without prior written
permission of the Company. Employee shall return all tangible evidence of such
confidential information to the Company prior to or at the termination of her
employment.
Section 10. Termination.
Employee's employment hereunder may be terminated without any breach of
this Agreement only under the following circumstances:
(a) Death. Employee's employment hereunder shall terminate
upon her death.
(b) Disability. If, as a result of Employee's incapacity due
to physical or mental illness, Employee shall have been absent from her duties
hereunder on a full-time basis for the entire period of six consecutive months,
and within 30 days after a Notice of Termination (as defined in Section 10(e))
is given shall not have returned to the performance of her duties hereunder on a
full-time basis, the Company may terminate Employee's employment hereunder.
(c) Cause. The Company may terminate Employee's employment
hereunder for Cause. For purposes of this Agreement, the Company shall have
"Cause" to terminate Employee's employment hereunder upon (i) the willful and
continued failure by Employee to substantially perform her duties or obligations
hereunder (other than any such failure resulting from Employee's incapacity due
to physical or mental illness), after demand for substantial performance is
delivered by the Company that specifically identifies the manner in which the
Company believes Employee has not substantially performed her duties or
obligations, or (ii) the willful engaging by Employee in misconduct which is
materially monetarily injurious to the Company. For purposes of this paragraph,
no act, or failure to act, on Employee's part shall be considered "willful"
unless done, or omitted to be done, by her not in good faith and without
reasonable belief that her action or omission was in the best interest of the
Company. Notwithstanding the foregoing, Employee shall not be deemed to have
been terminated for Cause without (i) reasonable notice to Employee setting
forth the reasons for the Company's intention to terminate for Cause, (ii) an
opportunity for Employee, together with her counsel, to be heard before the
Board, and (iii) delivery to Employee of a Notice of Termination from the Board
finding that in the good faith opinion of the Board Employee was guilty of
conduct set forth above in clause (i) or (ii) of the preceding sentence, and
specifying the particulars thereof in detail.
(d) Termination by Employee. Employee may terminate her
employment hereunder (i) for Good Reason (as defined below) or (ii) if her
health should become impaired to an extent that makes her continued performance
of her duties hereunder hazardous to her physical or mental health or her life,
provided that Employee shall have furnished the Company with a written statement
from a qualified doctor to such effect and provided, further, that, at the
Company's request, Employee shall submit to an examination by a doctor selected
by the Company and such doctor shall have concurred in the conclusion of
Employee's doctor. For purposes of this Agreement, "Good Reason" shall mean (i)
a change in control of the Company (as defined below), (ii) a management change
in control of the Company (as defined below), (iii) a failure by the Company to
comply with any material provision of this Agreement which has not been cured
within ten days after notice of such noncompliance has been given by Employee to
the Company, or (iv) any purported termination of Employee's employment which is
not effected pursuant to a Notice of Termination satisfying the requirements of
Section 10(e) (and for purposes of this Agreement no such purported termination
shall be effective). For purposes of this Agreement, a "change in control" of
the Company shall mean any of the following, but only if not approved by the
Board, (i) a change in control of a nature that would be required to be reported
in response to Item 1(a) of Current Report on Form 8-K pursuant to Section 13 or
15(d) of the Securities Exchange Act of 1934 (the "Exchange Act"), other than a
change of control resulting in control by Xxxxxx Xxxxxxx, Xxxxx Xxxxxxxxx or
Employee or a group including Xxxxxx Xxxxxxx, Xxxxx Xxxxxxxxx or Employee, (ii)
any "person" (as such term is used in Sections 13(d) and 14(d) of the Exchange
Act), other than Xxxxxx Xxxxxxx, Xxxxx Xxxxxxxxx or Employee or a group
including Xxxxxx Xxxxxxx, Xxxxx Xxxxxxxxx or Employee, is or becomes the
"beneficial owner" (as defined in Rule 13d-3 under the Exchange Act), directly
or indirectly, of securities of the Company representing 20% or more of the
combined voting power of the Company's then outstanding securities, (iii) the
Company and its affiliates owning less than a majority of the voting stock of
General Physics Corporation ("GPC"), (iv) the sale of all or substantially all
of the assets of GPC, or (v) at any time when there has not been a management
change of control of the Company, individuals who were either nominated for
election by the Board or were elected by the Board cease for any reason to
constitute at least a majority of the Board. For purposes of this Agreement, a
"management change in control" of the Company shall mean either of the following
(i) an event that would have constituted a change of control of the Company if
it had not been approved by the Board or (ii) a change in control of the Company
of a nature that would be required to be reported in response to Item 1(a) of
Current Report on Form 8-K pursuant to Section 13 or 15(d) of the Exchange Act,
resulting in control by a buy-out group including Xxxxxx Xxxxxxx or Xxxxxxxxx
but not Employee. For purposes of the foregoing definitions, a group shall not
be deemed to include Employee if she declines the opportunity to join such
group.
(e) Notice of Termination. Any termination of Employee's
employment by the Company or by Employee (other than termination pursuant to
Section 10(a)) shall be communicated by a Notice of Termination to the other
party hereto. For purposes of this Agreement, a "Notice of Termination" shall
mean a written notice which shall indicate the specific termination provision in
this Agreement relied upon and shall set forth in reasonable detail the facts
and circumstances claimed to provide a basis for termination of Employee's
employment under the provision so indicated.
(f) Date of Termination. "Date of Termination" shall mean (i)
if Employee's employment is terminated by her death, the date of her death, (ii)
if Employee's employment is terminated pursuant to Section 10(b), 30 days after
Notice of Termination is given (provided that Employee shall not have returned
to the performance of her duties on a full-time basis during such 30 day
period), and (iii) if Employee's employment is terminated for any other reason,
the date specified in the Notice of Termination, which shall not be earlier than
the date on which the Notice of Termination is given; provided that if within 30
days after any Notice of Termination is given the party receiving such Notice of
Termination notifies the other party that a dispute exists concerning the
termination, the Date of Termination shall be the date on which the dispute is
resolved, either by mutual written agreement of the parties or by a judgment,
order, or decree of a court of competent jurisdiction.
Section 11. Compensation Upon Termination or During Disability.
(a) During any period that Employee fails to perform her
duties hereunder as a result of incapacity due to physical or mental illness
("disability period"), Employee shall continue to receive her full salary at the
rate then in effect for such period until her employment is terminated pursuant
to Section 10(b), provided that payments so made to Employee during the
disability period shall be reduced by the sum of the amounts, if any, payable to
Employee at or prior to the time of any such payment under disability benefit
plans of the Company and which were not previously applied to reduce any such
payment.
(b) If Employee's employment is terminated by her death, the
Company shall pay to Employee's spouse, or if she leaves no spouse to her
estate, an amount equal to her full salary at the rate then in effect for a
period of one year after the date of death.
(c) If Employee's employment shall be terminated for Cause,
the Company shall pay Employee her full salary through the Date of Termination
at the rate in effect at the time Notice of Termination is given.
(d) If (i) in breach of this Agreement, the Company shall
terminate Employee's employment other than pursuant to Section 10(b) or 10(c)
(it being understood that a purported termination pursuant to Section 10(b) or
10(c) which is disputed and finally determined not to have been proper shall be
a termination by the Company in breach of this Agreement) or (ii) Employee shall
terminate her employment for Good Reason (other than as a result of a management
change of control), then
(A) the Company shall (I) pay Employee her
full salary and provide Employee her benefits through
the Date of Termination at the rate or level in
effect at the time Notice of Termination is given and
(II) pay Employee her full Bonus for the calendar
year in which the Date of Termination occurs, at such
time as such Bonus would have been paid if Employee's
employment by the Company had not so terminated;
(B) in lieu of any further salary or bonus
payments to Employee for periods subsequent to the
Date of Termination, the Company shall pay as
severance pay to Employee an amount equal to (1)
Employee's average annual cash compensation received
from the Company during the three full calendar years
immediately preceding the Date of Termination,
multiplied by (2) the greater of (w) the number of
years (including partial years) that would have been
remaining in the Employment Period if Employee's
employment by the Company had not so terminated but
the Employment Period were not thereafter extended
pursuant to the proviso of Section 3 and (x) three,
such payment to be made (y) if Employee's termination
is based on a change of control of the Company, in a
lump sum on or before the fifth day following the
Date of Termination, or (z) if Employee's termination
results from any other cause, in substantially equal
semimonthly installments on the fifteenth and last
days of each month commencing with the month in which
the Date of Termination occurs and continuing for the
number of consecutive semimonthly payment dates
(including the first such date as aforesaid) equal to
the product obtained by multiplying the number of
years (including partial years) applicable under
clause (w) above by 24;
(C) all options to purchase the Company's
common stock granted to Employee under the Company's
option plan or otherwise shall immediately become
fully vested and shall terminate on such date as they
would have terminated if Employee's employment by the
Company had not terminated and, if Employee's
termination is based on a change of control of the
Company and Employee elects, not more than 30 days
after the Date of Termination, to surrender any or
all of such options to the Company, the Company shall
pay Employee on or before the fifth day following
such surrender a lump sum cash payment equal to the
excess of (1) the fair market value on the Date of
Termination of the securities issuable upon exercise
of the options surrendered over (2) the aggregate
exercise price of the options surrendered;
(D) the Company shall maintain in full force
and effect, for the continued benefit of Employee,
for a number of years equal to the greater of (1) the
number of years (including partial years) that would
have been remaining in the Employment Period if
Employee's employment by the Company had not so
terminated but the Employment Period were not
thereafter extended pursuant to the proviso of
Section 3 and (2) three, all employee benefit plans
and programs in which Employee was entitled to
participate immediately prior to the Date of
Termination provided that Employee's continued
participation is possible under the general terms and
provisions of such plans and programs. In the event
that Employee's participation in any such plan or
program is barred, the Company shall arrange to
provide Employee with benefits substantially similar
to those which Employee would otherwise have been
entitled to receive under such plans and programs
from which her continued participation is barred; and
(E) if termination of Employee's employment
arises out of a breach by the Company of this
Agreement, the Company shall pay all other damages to
which Employee may be entitled as a result of such
breach, including damages for any and all loss of
benefits to Employee under the Company's employee
benefit plans which Employee would have received if
the Company had not breached this Agreement and had
Employee's employment continued for the then
remaining term of the Employment Period but the
Employment Period were not thereafter extended
pursuant to the proviso of Section 3, and including
all reasonable legal fees and expenses incurred by
her as a result of such termination.
(e) If Employee shall terminate her employment for Good
Reason as a result of a management change of control, then
(A) the Company shall (I) pay Employee her
full salary and provide Employee her benefits through
the Date of Termination at the rate or level in
effect at the time Notice of Termination is given and
(II) pay Employee her full Bonus for the calendar
year in which the Date of Termination occurs, at such
time as such Bonus would have been paid if Employee's
employment by the Company had not so terminated;
(B) in lieu of any further salary or bonus
payments to Employee for periods subsequent to the
Date of Termination, the Company shall pay as
severance pay to Employee an amount equal to twice
Employee's average annual cash compensation received
from the Company during the three full calendar years
immediately preceding the Date of Termination, such
payment to be made in a lump sum on or before the
fifth day following the Date of Termination;
(C) all options to purchase the Company's
common stock granted to Employee under the Company's
option plan or otherwise shall immediately become
fully vested and shall terminate on such date as they
would have terminated if Employee's employment by the
Company had not terminated and, if Employee elects,
not more than 30 days after the Date of Termination,
to surrender any or all of such options to the
Company, the Company shall pay Employee on or before
the fifth day following such surrender a lump sum
cash payment equal to the excess of (1) the fair
market value on the Date of Termination of the
securities issuable upon exercise of the options
surrendered over (2) the aggregate exercise price of
the options surrendered; and
(D) the Company shall maintain in full force
and effect, for the continued benefit of Employee,
for two years, all employee benefit plans and
programs in which Employee was entitled to
participate immediately prior to the Date of
Termination provided that Employee's continued
participation is possible under the general terms and
provisions of such plans and programs. In the event
that Employee's participation in any such plan or
program is barred, the Company shall arrange to
provide Employee with benefits substantially similar
to those which Employee would otherwise have been
entitled to receive under such plans and programs
from which his continued participation is barred.
(f) If Employee shall terminate her employment under Section
10(d)(ii), the Company shall pay Employee her full salary through the Date of
Termination at the rate in effect at the time Notice of Termination is given.
(g) Employee shall not be required to mitigate the amount of
any payment provided for in this Section 11 by seeking other employment or
otherwise.
(h) Notwithstanding anything in this Agreement to the
contrary, the Company shall not be obligated to pay any portion of any amount
otherwise payable to Employee pursuant to this Section 11 if the Company could
not reasonably deduct such portion solely by operation of Section 280G of the
Internal Revenue Code of 1986, as amended.
Section 12. Successors; Binding Agreement.
(a) The Company will require any successor (whether direct or
indirect, by purchase, merger, consolidation or otherwise) to all or
substantially all of the business and/or assets of the Company, by agreement in
form and substance reasonably satisfactory to Employee, to expressly assume and
agree to perform this Agreement in the same manner and to the same extent that
the Company would be required to perform it if no such succession had taken
place. As used in this Agreement, "Company" shall mean the Company as
hereinbefore defined and any successor to its business and/or assets as
aforesaid which executes and delivers the agreement provided for in this Section
12(a) or which otherwise becomes bound by all the terms and provisions of this
Agreement by operation of law.
(b) Employee's rights and obligations under this Agreement
shall not be transferable by assignment or otherwise, such rights shall not be
subject to commutation, encumbrance, or the claims of Employee's creditors, and
any attempt to do any of the foregoing shall be void. The provisions of this
Agreement shall be binding upon and inure to the benefit of Employee and her
personal or legal representatives, executors, administrators, successors, heirs,
distributees, devisees, and legatees, and shall be binding upon and inure to the
benefit of the Company and its successors under Section 12(a). If Employee
should die while any amounts would still be payable to her hereunder if she had
continued to live, all such amounts, unless otherwise provided herein, shall be
paid in accordance with the terms of this Agreement to Employee's devisee,
legatee, or other designee or, if there be no such designee, to Employee's
estate.
Section 13. No Third Party Beneficiaries.
This Agreement does not create, and shall not be construed as creating,
any rights enforceable by any person not a party to this Agreement (except as
provided in Sections 11(b) and 12).
Section 14. Fees and Expenses.
The Company shall pay all reasonable legal fees and related expenses
(including the costs of experts, evidence, and counsel) incurred by Employee as
a result of a contest or dispute over Employee's termination of employment if
(a) such contest or dispute is resolved in whole or in part in Employee's favor
or (b) Employee reasonably believed in good faith that she had a valid claim. In
addition, the Company shall pay Employee interest, at the prime rate of Fleet
Bank, National Association, on any amounts payable to Employee hereunder that
are not paid when due.
Section 15. Representations and Warranties of Employee.
Employee represents and warrants to the Company that (a) Employee is
under no contractual or other restriction or obligation which is inconsistent
with the execution of this Agreement, the performance of her duties hereunder,
or the other rights of the Company hereunder and (b) Employee is under no
physical or mental disability that would hinder her performance of duties under
this Agreement.
Section 16. Life Insurance.
If requested by the Company, Employee shall submit to such physical
examinations and otherwise take such actions and execute and deliver such
documents as may be reasonably necessary to enable the Company, at its expense
and for its own benefit, to obtain life insurance on the life of Employee.
Employee has no reason to believe that her life is not insurable with a
reputable insurance company at rates now prevailing in the City of New York for
healthy women of her age.
Section 17. Modification.
This Agreement and the Schedule hereto set forth the entire
understanding of the parties with respect to the subject matter hereof,
supersede all existing agreements between them concerning such subject matter,
and may be modified only by a written instrument duly executed by each party.
Section 18. Notices.
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Any notice or other communication required or permitted to be given
hereunder shall be in writing and shall be mailed by certified mail, return
receipt requested, or delivered against receipt to the party to whom it is to be
given at the address of such party set forth in the preamble to this Agreement
(or to such other address as the party shall have furnished in writing in
accordance with the provisions of this Section 18). Notice to the estate of
Employee shall be sufficient if addressed to Employee as provided in this
Section 18. Any notice or other communication given by certified mail shall be
deemed given at the time of certification thereof, except for a notice changing
a party's address which shall be deemed given at the time of receipt thereof.
Section 19. Waiver.
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Any waiver by either party of a breach of any provision of this
Agreement shall not operate as or be construed to be a waiver of any other
breach of such provision or of any breach of any other provision of this
Agreement. The failure of a party to insist upon strict adherence to any term of
this Agreement on one or more occasions shall not be considered a waiver or
deprive that party of the right thereafter to insist upon strict adherence to
that term or any other term of this Agreement. Any waiver must be in writing.
Section 20. Headings.
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The headings in this Agreement are solely for the convenience
of reference and shall be given no effect in the construction or interpretation
of this Agreement.
Section 21. Counterparts; Governing Law.
This Agreement may be executed in any number of counterparts,
each of which shall be deemed an original, but all of which together shall
constitute one and the same instrument. It shall be governed by and construed in
accordance with the laws of the State of New York, without giving effect to
conflict of laws.
IN WITNESS WHEREOF, the parties have duly executed this
Agreement as of the date first above written.
GP STRATEGIES CORPORATION
By:
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Xxxxxx Xxxx Xxxxxx
